CAMERON, Circuit Judge.
Upon evidence obtained by federal and state agents acting without a search warrant, the appellant, Clyde Walker, was indicted and convicted of illegal distillation and possession of untaxed whiskey. From this conviction, Walker appeals on the ground that the District Court erred in overruling his motion to suppress and his objections to admitting evidence so obtained. This appeal presents the question whether Walker’s barn is afforded the protection of the Fourth Amendment to the Constitution and whether this protection is destroyed under the claim of the officers that they had probable cause for making the search without a warrant.
An agent for the Internal Revenue Bureau was informed at his office in Birmingham that, “there might be something on the Clyde Walker place”. This information was from an anonymous source and the agent could not recall when it came or whether it was in the form of a letter or a telephone call. Due to the vague and suspicious nature of the message and the large number of unreliable anonymous messages received by him, the agent doubted its credibility and so testified. Sometime after receipt of the message, however, the agent went, in company with one other federal agent and three state and local officers, to appellant’s farm to “look around”.
Walker’s house, barn and other outhouses lay approximately one mile from the public road and access to them and to his farm could be had only by a private road. While on the private road about one-fourth mile from the Walker house, two of the local officers left the automobile with instructions to circle the farm through the woods and look for possible distilling activities. The other officers drove on to the house. Appellant’s barn was seventy to eighty yards from his house, separated therefrom by his private driveway, and was surrounded by a fence with a gap allowing entrance into the barnyard from the private driveway in front of the house.
Upon arriving at the circular driveway in front of appellant’s house, the federal agent and one local officer entered the barnyard through the gap which was open at that time. They had seen appellant working on his tractor at the rear of the house and some distance away from the house and the barn. Appellant waved to them and said, “Hi”. As the officers approached to within about thirty feet of the barn, they noticed a black garden hose running from the barn, became aware of the odor of cooking mash, and heard a metallic thump and the sound of running footsteps inside the barn. On such perception, the officers entered the barn where they found a still in operation, complete except for the capper which had been knocked off, several barrels of mash, [449]*449twelve gallons of whiskey and a man named Johney Nunnally whom they arrested. The officers could not see inside the barn until they had opened the door and had entered that portion of the barn in which the distilling equipment was found. At the completion of the search, appellant was arrested.
Upon this evidence supplied by the various federal, state and local officers, introduced over his motion to suppress and his objection, appellant was convicted. He contends that the evidence was illegally obtained by agents of the federal government in violation of the Fourth Amendment, and that it should have been excluded. The Government contends that the barn was not a part of appellant’s curtilage and that, even if it was, the agents had the right to make the search on the ground that they had probable cause to make the search without a warrant.
The barn here searched was a domestic building constituting an integral part of that group of structures making up the farm home. Every case must be decided upon its own peculiar facts1, and we hold that, under the facts here, this barn was a part of the curtilage. In Taylor v. United States, 1931, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, the house searched was a metal garage adjacent to the dwelling house; in Roberson v. United States, 6 Cir., 1948, 165 F.2d 752, the search was of a smokehouse; and in Walker v. United States, 5 Cir., 1942, 125 F.2d 395, 396, the search was of a shed consisting of a chicken house and garage, which stood fifty to sixty feet from the dwelling house; in each instance it was considered that the curtilage was involved.
In the Walker case the federal agents had found sacks of dry mash near the premises several days before the search and had smelled the odor of mash coming from the shed. After several days of waiting and watching without developments they came onto the premises announcing, “ ‘We have come for your still in that shed’ ”. The officers entered the enclosure in which the shed was situated and then entered the shed, where they found a still, mash and jugs of whiskey. We held that the search was of the residence, was illegal and that the evidence obtained thereby should have been suppressed. On the basis of these authorities we hold that appellant’s barn was a part of the curtilage.
But it is plain that the search cannot be justified on any basis. The Fourth Amendment insures “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures * * -:<■»_ The Amendment further provides that no warrants shall issue, “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. The language of the Amendment is plain and its meaning clear.
In Johnson v. United States2, the Supreme Court quotes from an older case these words: “ ‘It would not be possible to add to the emphasis with which the framers of our Constitution and this Court * * * have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two [Fourth and Fifth] Amendments. The effect of the decisions cited is * * * that they [such rights] are to be regarded as of the very essence of constitutional liberty; and * * * that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or “gradual depreciation” of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers’ ”.
In the same case Mr. Justice Jackson outlines the judicially created [450]*450“exceptional circumstances” under which search without a warrant may be made without being condemned as an unreasonable search. These are limited to search as an incident to arrest, search of a movable vehicle and search which may be justified under rare circumstances to prevent threatened destruction or removal of contraband.
None of these exceptional circumstances are present here. The arrest of appellant followed and did not precede the search and was based upon the result of the illegal search. We are therefore not required to explore the controversy in progress between members of the Supreme Court as to the search which may attend a legal arrest3. No vehicle is involved and no' removal of the contraband was possible, the ofiicers being present and able to place guards at all exits.4
Free access — add to your briefcase to read the full text and ask questions with AI
CAMERON, Circuit Judge.
Upon evidence obtained by federal and state agents acting without a search warrant, the appellant, Clyde Walker, was indicted and convicted of illegal distillation and possession of untaxed whiskey. From this conviction, Walker appeals on the ground that the District Court erred in overruling his motion to suppress and his objections to admitting evidence so obtained. This appeal presents the question whether Walker’s barn is afforded the protection of the Fourth Amendment to the Constitution and whether this protection is destroyed under the claim of the officers that they had probable cause for making the search without a warrant.
An agent for the Internal Revenue Bureau was informed at his office in Birmingham that, “there might be something on the Clyde Walker place”. This information was from an anonymous source and the agent could not recall when it came or whether it was in the form of a letter or a telephone call. Due to the vague and suspicious nature of the message and the large number of unreliable anonymous messages received by him, the agent doubted its credibility and so testified. Sometime after receipt of the message, however, the agent went, in company with one other federal agent and three state and local officers, to appellant’s farm to “look around”.
Walker’s house, barn and other outhouses lay approximately one mile from the public road and access to them and to his farm could be had only by a private road. While on the private road about one-fourth mile from the Walker house, two of the local officers left the automobile with instructions to circle the farm through the woods and look for possible distilling activities. The other officers drove on to the house. Appellant’s barn was seventy to eighty yards from his house, separated therefrom by his private driveway, and was surrounded by a fence with a gap allowing entrance into the barnyard from the private driveway in front of the house.
Upon arriving at the circular driveway in front of appellant’s house, the federal agent and one local officer entered the barnyard through the gap which was open at that time. They had seen appellant working on his tractor at the rear of the house and some distance away from the house and the barn. Appellant waved to them and said, “Hi”. As the officers approached to within about thirty feet of the barn, they noticed a black garden hose running from the barn, became aware of the odor of cooking mash, and heard a metallic thump and the sound of running footsteps inside the barn. On such perception, the officers entered the barn where they found a still in operation, complete except for the capper which had been knocked off, several barrels of mash, [449]*449twelve gallons of whiskey and a man named Johney Nunnally whom they arrested. The officers could not see inside the barn until they had opened the door and had entered that portion of the barn in which the distilling equipment was found. At the completion of the search, appellant was arrested.
Upon this evidence supplied by the various federal, state and local officers, introduced over his motion to suppress and his objection, appellant was convicted. He contends that the evidence was illegally obtained by agents of the federal government in violation of the Fourth Amendment, and that it should have been excluded. The Government contends that the barn was not a part of appellant’s curtilage and that, even if it was, the agents had the right to make the search on the ground that they had probable cause to make the search without a warrant.
The barn here searched was a domestic building constituting an integral part of that group of structures making up the farm home. Every case must be decided upon its own peculiar facts1, and we hold that, under the facts here, this barn was a part of the curtilage. In Taylor v. United States, 1931, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951, the house searched was a metal garage adjacent to the dwelling house; in Roberson v. United States, 6 Cir., 1948, 165 F.2d 752, the search was of a smokehouse; and in Walker v. United States, 5 Cir., 1942, 125 F.2d 395, 396, the search was of a shed consisting of a chicken house and garage, which stood fifty to sixty feet from the dwelling house; in each instance it was considered that the curtilage was involved.
In the Walker case the federal agents had found sacks of dry mash near the premises several days before the search and had smelled the odor of mash coming from the shed. After several days of waiting and watching without developments they came onto the premises announcing, “ ‘We have come for your still in that shed’ ”. The officers entered the enclosure in which the shed was situated and then entered the shed, where they found a still, mash and jugs of whiskey. We held that the search was of the residence, was illegal and that the evidence obtained thereby should have been suppressed. On the basis of these authorities we hold that appellant’s barn was a part of the curtilage.
But it is plain that the search cannot be justified on any basis. The Fourth Amendment insures “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures * * -:<■»_ The Amendment further provides that no warrants shall issue, “but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. The language of the Amendment is plain and its meaning clear.
In Johnson v. United States2, the Supreme Court quotes from an older case these words: “ ‘It would not be possible to add to the emphasis with which the framers of our Constitution and this Court * * * have declared the importance to political liberty and to the welfare of our country of the due observance of the rights guaranteed under the Constitution by these two [Fourth and Fifth] Amendments. The effect of the decisions cited is * * * that they [such rights] are to be regarded as of the very essence of constitutional liberty; and * * * that these amendments should receive a liberal construction, so as to prevent stealthy encroachment upon or “gradual depreciation” of the rights secured by them, by imperceptible practice of courts or by well-intentioned, but mistakenly overzealous executive officers’ ”.
In the same case Mr. Justice Jackson outlines the judicially created [450]*450“exceptional circumstances” under which search without a warrant may be made without being condemned as an unreasonable search. These are limited to search as an incident to arrest, search of a movable vehicle and search which may be justified under rare circumstances to prevent threatened destruction or removal of contraband.
None of these exceptional circumstances are present here. The arrest of appellant followed and did not precede the search and was based upon the result of the illegal search. We are therefore not required to explore the controversy in progress between members of the Supreme Court as to the search which may attend a legal arrest3. No vehicle is involved and no' removal of the contraband was possible, the ofiicers being present and able to place guards at all exits.4
The Government takes the novel position that its ofiicers had a perfect right to enter the barn and make a search solely because it claims that, based on the evidence above outlined, they had probable cause to believe that intoxicating liquors were being manufactured inside the barn. That contention is refuted by a number of recent Supreme Court decisions 5 where searches were held illegal even though the officers had grounds fully as good as those claimed here. The Johnson opinion further furnishes a sufficient answer to the Government’s contention6; and the Supreme Court’s pronouncement in Agnello v. United States, 269 U.S. 20 at page 32, 46 S.Ct. 4, 6, 70 L.Ed. 145, is also directly in point:
“The search of a private dwelling without a warrant is in itself unreasonable and abhorrent to our laws. * * * Save on certain cases as incident to arrest, there is no sanction in the decisions of the courts, federal or state, for the search of a private dwelling house without a warrant. * * * Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no jus[451]*451tification for search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”
The search and seizure here were unreasonable and in violation of the Fourth Amendment and the motion to suppress the evidence should have been sustained, and the evidence should have been excluded. Because the court below committed error in ruling against appellant in both instances, its judgment is reversed and the cause is remanded for further and not inconsistent proceedings.
Reversed.
RIVES, Circuit Judge.
I dissent.